Manikavasagam a/l Sundaram v Sun Media Corp Sdn Bhd (BA-23NCVC-19-05/2018)

SUN MEDIA CORPORATION SDN BHD (COMPANY NO. 221220-K]

AMAR SHAH MOSHEN …... DEFENDANTS GROUNDS OF JUDGMENT

Acts and conduct of active politicians tend to attract much attention of the mainstream media and alternative media of information in our modern era of information and communication technology. The Plaintiff in our present case, being an active politician at the material times, was no exception to such publicity. 2

The unwelcome publicity all started with the arrest of the Plaintiff by the Malaysian Anti-Corruption Commission (“MACC”) on 15.6.2016.

Not to be left behind, the Defendants also published two impugned articles regarding the Plaintiff – one on 16.06.2016 and the other on 17.06.2016.

In the present case, the Plaintiff has sued the Defendant for the publication of news articles in the online news portal of The Sun and in The Sun newspaper as the Plaintiff asserted that the publication was defamatory.

As correctly submitted by the counsel for the 1st Defendant, in the recent years the courts have been moving in the direction of placing greater emphasis on freedom of expression, and transparency, and less willing to entertain “thin skinned” litigants who are too readily offended by articles which deal primarily with issues of alleged misconduct of a politician or any investigation being carried out by MACC. This, however, is not a call for a free-for-all. The changing approach is only in respect of questions relating to matters of public interest and not the private affairs of people.

As early as 1986, the Supreme Court in The New Straits Times Press (M) Bhd v AirAsia Bhd [1987] 1 MLJ 36, at page 39D recognised that: 3 “…value is placed by the Court upon the freedom of speech which is related to the freedom of the press.” per Abdul Hamid Ag. L.P.

In 2001, the House of Lords said in the landmark decision of Reynolds v Times Newspaper Ltd [2001] 2 AC 127 held as follows: “In determining whether an occasion is regarded as privileged the Court has regard to all the circumstances: see, for example the explicit statement of Lord Buckmaster LC in London Association for Protection of Trade v. Greenlands Ltd [1916] 2 AC 15 at 23, [1916- 17] All ER Rep 452 at 456 ('every circumstance associated with the origin and publication of the defamatory matter'). And circumstances must be viewed with today's eyes. The circumstances in which the public interest requires a communication to be protected in the absence of malice depend upon current social conditions. The requirements at the close of the twentieth century may not be the same as those of earlier centuries or earlier decades of this century.” per Lord Nicholls at page 195, para C-D (emphasis added)

In 2004, Azmel J (later FCJ) in Hussin Mohd Ali v Ho Kay Tat & Anor [2004] 4 MLJ 140 said at para 28, page 148: “It is also important that such defects should not be swept under the carpet. Hence the role of the newspaper and the press become very important to publicise whatever defects and shortcomings that occurred during such events in order to give public 4 awareness and at the same time to urge SIC to rectify such defects and shortcomings.” (emphasis added)

Prasad Abraham JC (later FCJ) implicitly recognised the same point in Dato’ Annas bin Khatib Jaafar v Datuk Manja Ismail & Ors [2011] 8 MLJ 747 at para 21, page 759: “It is the view of this court that so long as the defendant advanced matters of public interest within the confines of responsible journalism, they were always in a position to enjoin the court to declare the reassertion of the guarantee to the freedom of speech enshrined under Article 10 of the Federal Constitution. This approach would be consonant with the aspirations of modern society for transparency and accountability whilst protecting against blatant maligning of the reputation of individuals”.

In this regard, in Tony Pua Kiam Wee v Syarikat Bekalan Air Selangor Sdn Bhd (unreported) Court of Civil Appeal W- 02(NCVC)(W)-1464-06/2012, the Court of Appeal said that a key consideration in deciding whether a journalist was acting honestly or maliciously was to look at the source of his information, including whether he had relied on credible official sources, or whether the information was from political opponents.

In para 5 to 14 of the Statement of Case, the Plaintiff pleaded his case of defamations as follows: 5 “5. Pada 16.06.2016, satu Artikel bergambar dalam portal berita online bernama “The SUN daily” milik Defendan Pertama. Ini telah ditulis oleh Defendan Kedua dan diterbitkan oleh dan / atau disebabkan untuk diterbit oleh Defendan Pertama yang mana telah memfitnah Plantif. Artikel tersebut adalah seperti berikut: “A former PKR MP has been detained by the Malaysian Anti Corruption Agency (MACC) for allegedly accepting a RM30,000.00 bribe from a contractor.” dan “He is also alleged to have cheated several disabled persons of their Employees Provident Fund (EPF) deposits”.

Selanjutnya pada 17.06.2016, satu artikel bergambar pada mukasurat pertama dalam akhbar “the SUN on friday” telah diterbitkan yang mana telah ditulis oleh Defendan Kedua dan diterbitkan oleh dan / atau disebabkan untuk diterbit oleh Defendan Pertama yang mana telah memfitnah Plantif. Artikel tersebut adalah seperti berikut dengan headlines muka hadapan “MACC nabs ex-Mp” dan “PKR man being probed over RM30,000.00 bribe, allegedly cheating disabled persons of EPF money” serta artikel muka hadapan “An MACC source said PKR Kuala Selangor division chief S. Manikavasagam (pix), the former Kapar MP, was allegedly caught red-handed with the money from a Grade 3 contractor ….” dan “He is also being investigated for cheating the and disabled persons of their Employees Provident Fund (EPF deposits) amounting to more than RM60,000.00 since becoming Kapar MP in 2008”. 6

Kata-kata di atas yang mana telah ditulis dan dapat dilihat di dalam Artikel-Artikel tersebut merupakan kata-kata fitnah dan telah menyebabkan satu fitnah bertulis yang serius, antara lain, Plantif adalah orang yang korup dan menyokong rasuah dan penipu.

Kata-kata dan pernyataan yang dibuat dan diterbitkan di dalam Artikel-Artikel tersebut yang mana telah disebut di dalam perenggan 5 dan 6 di atas kini dan selepas ini akan dirujuk sebagai “Kata-Kata Fitnah tersebut”. Kata-Kata Fitnah tersebut telah dikaitkan kepada Plantif dan akan difahamkan bahawa ianya merujuk, inter alia, kepada Plantif.

Artikel yang telah dipertikaikan tersebut dan Kata-Kata Fitnah tersebut yang telah dan adalah fitnah dan / atau fitnah bertulis terhadap Plantif secara semulajadi dan / atau secara implikasi, bertujuan dan difahamkan untuk, inter alia, untuk memberi maksud bahawa Plantif:-

11.1 Bahawa Plantif sebagai Pegawai Kerajaan Negeri dan bekas Ahli Parlimen bagi Kawasan Pilihanraya Kapar Selangor Darul Ehsan adalah korup dan telah mengambil rasuah dari Kontraktor-Kontraktor untuk Kontrak-Kontrak dan telah menipu beberapa orang kurang upaya dengan deposit-deposit KWSP mereka dengan jumlah lebih daripada RM60,000.00; 7

11.2 Bahawa Plantif adalah Pegawai Kerajaan Negeri dan bekas Ahli Parlimen yang tidak bertanggungjawab dengan berbuat demikian;

11.3 Bahawa Plantif tidak layak untuk memegang pejabat awam tersebut;

11.4 Bahawa Plantif tidak bertanggungjawab dan korup;

11.5 Bahawa Plaintif telah melakukan kesalahan-kesalahan jenayah yang boleh dihukum penjara dengan bersekongkol dan menyokong aktiviti-aktiviti jenayah; dan;

11.6 Bahawa Plantif adalah tidak beretika.

Kata-kata Fitnah di dalam artikel tersebut, dengan sindiran telah dan adalah memfitnah Plantif secara semulajadi dan / atau secara implikasi, bertujuan dan difahamkan untuk, inter alia, untuk memberi maksud bahawa Plantif:-

12.1 Bahawa Plantif adalah seorang yang tidak amanah dalam kedua-dua kapasiti peribadi dan kewangannya;

12.2 Bahawa Plantif adalah seorang yang bersekongkol dengan jenayah dan merupakan suspek jenayah;

12.3 Bahawa Plantif menyokong aktivit-aktivi jenayah; 8

12.4 Bahawa Plantif adalah seorang yang tidak boleh dipercayai dan juga tidak layak untuk menjadi ahli politik;

12.5 Bahawa Plantif tidak layak untuk memegang pejabat awam;

12.6 Bahawa Plantif adalah seorang yang tidak bertanggungjawab dan korup;

12.7 Bahawa Plantif telah melakukan kesalahan-kesalahan jenayah yang boleh dihukum penjara; dan

12.8 Bahawa Plantif adalah seorang yang tidak beretika.

Kata-kata Fitnah oleh kedua-dua Defendan tersebut adalah salah dan merupakan fitnah bertulis terhadap Plantif. Kata-Kata Fitnah tersebut sekiranya dibaca secara kolektif atau berasingan dan/atau dibaca dalam keseluruhan konteks Artikel tersebut adalah tidak wajar secara keseluruhannya. Oleh itu, kata-kata fitnah tersebut merupakan fitnah bertulis terhadap Plantif dan dianggap untuk memfitnah Plantif sebagai Pegawai Kerajaan Negeri dan bekas Ahli Parlimen.

Plantif selanjutnya menegaskan bahawa Kata-Kata Fitnah tersebut yang telah diterbitkan oleh Defendan-Defendan dalam Artikel tersebut:- 9

14.1 Adalah tidak benar, menyakitkan hati, bermuka-muka, salah dan tidak wajar keseluruhannya;

14.2 Adalah dan terlalu cuai, sembarangan, dengan sengaja, dengan niat jahat dan bertujuan untuk merendahkan harga diri anakguam kami kepada orang awam, kedua-duanya dalam Negeri Selangor dan secara Nasional, dan mendedahkan anakguam kami kepada kebencian orang awam, cemuhah, dan kehinaan;

14.3 Adalah secara keseluruhannya tidak benar, didorong oleh niat jahat, mala fides, penyelewengan fakta yang mencadangkan ketidakpatuhan moral dan undang-undang pada pihak Plantif dan dibuat terutamanya dalam niat Defendan-Defendan untuk mendapatkan publisiti murahan atau sensasi untuk tujuan politik atau lain-lain tujuan; dan

14.4 Adalah dirancang terlebih dahulu dan dirancang untuk mencemarkan, memburuk-memburukkan, memfitnah dan mencederakan nama dan watak yang baik ke atas anakguam kami.

The Plaintiff subsequently withdrew his claims against the 2nd Defendant: see also paragraph 1 of the Statement of Agreed Facts.

In the 1st Defendant’s Defence, the 1st Defendant pleaded that –

the Plaintiff was an active politician : paragraph 2; 10

the two impugned articles were published by the Sun newspaper and website owned by the 1st Defendant : paragraph 5;

paragraph 5 of the Statement of Claim does not sufficiently identify and particularise which online article published on the 1st Defendant’s website on 16.6.2016 the Plaintiff is referring to : paragraph 7;

admitted that the words “MACC nabs ex-MP”, “PKR man being probed over RM30,000 bribe, allegedly cheating disable persons of EPF money” : or “An MACC source said PKR Kuala Selangor division chief S. Manikavasagam (pix), the former Kapar MP, was allegedly caught red-handed with the money from a Grade 3 contractor” were published by the 1st Defendant; but denied the other allegations in paragraphs 6 and 15 of the Statement of Claim : paragraph 8;

asserts that the words complained of could not in their natural and / or ordinary meaning and / or by way of innuendo bear, be capable of being or be understood to bear the meanings stated in paragraphs 11.1 to 12.8 of the Statement of Claim : paragraph 9.

the defence of qualified privilege applied, and that the publication was done in good faith, and without malice, and pleaded particulars thereof : paragraph 10; 11

alternative defence that insofar as the words complained of consist of statements of fact, they are true in substance and fact, and also relied alternatively on particulars of specific facts and matters in mitigation of damages : paragraphs 11, 12 and 23;

the 1st Defendant have been prepared to publish the Plaintiff’s viewpoints but the Plaintiff never requested for it : paragraph 15;

denial that the words complained of were published with malice or ill-intent : paragraph 18; and

denial that Plaintiff has suffered any loss or damage : paragraph 22. FULL TRIAL

The full trial took 1 day on 28.9.2020.

At the start of the full trial, the following documents were marked : Court Enclosure Date of Filing Document Description Marked as 20 17.3.2019 Bundle of Pleadings BOP 17 18.1.2019 Ringkasan Kes Defendan Kedua SOC (D2) 12 23 17.3.2019 Isu-Isu Untuk Dibicarakan SIT 25 17.3.2019 Ringkasan Kes Plaintif SOC (P) 26 17.3.2019 Ringkasan Kes Defendan Pertama SOC (D1) 30 5.4.2019 Common Bundle of Documents (Part B) AB1 31 16.4.2019 Common Bundle of Documents (SSM Search) (Part A) AA 24 17.3.2019 Agreed Facts SAF At the trial, it was clarified by the parties’ counsel that Enclosure 30 was mistakenly stated as containing some Part A documents but the real intention of the parties was to put all the documents in Enclosure 30 to be in Part B documents i.e. authenticity agreed but the truth of contexts are disputed. Upon such clarification, Enclosure 30 was marked as “”AB1” with the mutual consent of both parties. For the full trial, the parties mutually agreed that in order to save time and costs, the following procedural process be adopted for the conduct of full trial in this case:

A witness statement deemed to be read when its contents has been confirmed on oath by the witness as true or accurate and there is no necessity for the witness to read the contents of the written witness statement into the CRT system again, provided 13 this is without prejudice to the rule against hearsay; and

The documents in Part A and Part B categories are deemed as marked when expressly referred to in the witness statement or in the oral evidence, and here is no necessity to mark Part A or Part B documents with separate exhibit numbers again, provided this is without prejudice to rule against hearsay.

The witnesses who testified at the full trial were as follows: PW1 Manikavasagam a/l Sundaram (the Plaintiff); PW2 Insp Wan Mohd Nor Halim bin Zakaria; DW1 Muhammad Amar Shah bin Moshen Mainder (2nd Defendant, the reporter); and DW2 Freddie Ng Chee Hock, Managing Editor of The Sun.

After having read, perused and considered the evidence of the witnesses, having preserved demeanour of witnesses and having read and considered the submission of the parties this Court on 18.12.2020 dismissed the Plaintiff’s claims with costs.

In this case, the Plaintiff was arrested by the Malaysian Anti-Corruption Commission (“MACC”) on 15.6.2016. This fact is undisputed and has been admitted by the Plaintiff himself. 14

The circumstances relating to the Plaintiff’s arrest and news of the Plaintiff’s arrest by the MACC on 15.6.2016 was widely reported in mainstream local newspapers and online news portals –

“Tian Chua confirms ex-Kapar MP probed for corruption” published by the Star Online on 16.6.2016;

“PKR leadership to meet ex-MP Manikavasagam over MACC arrest” published by Malaysiakini on 16.6.2016;

“PKR confirms former MP detained by MACC” published by

“I’m being set up, claims PKR man over corruption probe” published by New Straits Times on 17.6.2016; and

“Former Malaysian lawmaker denies taking $9,900 bribe, says parcel was thrown into his car” published by Straits Times on

18.6.2016.

The Plaintiff has during cross examination agreed that –

MACC is fund by tax payers i.e. the rakyat;

The investigations and work carried out by MACC is within public interest; 15

The public have the right to know about the various investigations and work carried by the MACC; and

The Sun (published by the 1st Defendant) as a daily newspaper has a duty to report on the work carried out and the investigations done by the MACC truthfully. The 1st Impugned Article

On 16.6.2016, the 1st Defendant published an article entitled “MACC nabs ex-MP”. The Plaintiff in paragraph 5 of his Statement of Claim dated 29.5.2018 (“SOC”) did not identify the title of the article pleaded but however during cross-examination confirmed that the article pleaded in paragraph 5 of the SOC was the article found at page 5 of Bundle AB1 (“the 1st Impugned Article”).

The Plaintiff in paragraph 5 of the SOC pleaded that the following impugned words in the 1st Impugned Articles are allegedly defamatory of him –

“A former PKR MP has been detained by the Malaysian Anti Corruption Agency (MACC) for allegedly accepting a RM30,000.00 bribe from a contractor.”

“He is also alleged to have cheated several disabled persons of their Employese Provident Fund (EPF) deposits.” 16

It is trite that a party is bound by his pleadings, and the Court cannot decide on a cause of action not pleaded by other of the parties. The specific requirement of pleading is even more necessary in a defamation case.

Mohd Hishamudin Bin Md Yunus J (later JCA) held in Dato’ V Kanalingam v. David Samuels and Others [2006] 1 MLJ 521 at page 527, para 12 held that plaintiff should plead the particular words or phrases or sentences or paragraphs in the article which, when read in the context of the whole article, are defamatory to the plaintiff in the manner as pleaded.

In our present case, the words pleaded by the Plaintiff in paragraph 5 of the Statement of Claim were not published in the 1st Impugned Article. In the premises, the Plaintiff’s claim on the 1st Impugned Article fails. In the Plaintiff’s Written Submissions, the Plaintiff did not submit on the 1st Impugned Article, and by such conduct has thereby impliedly abandoned his cause of action in respect of the 1st Impugned Article.

Even if the words pleaded in paragraph 5 of the Statement of Claim were assumed to be published in the 1st Impugned Article, the words in the first pleaded sentence are true in that in our present case it was clearly established and in fact undisputed that the Plaintiff, as a former PKR MP, was detained by MACC for allegedly accepting a RM30,000 bribe from a contractor. Although the Plaintiff in this trial has denied the bribe, he confirmed that he was detained by MACC, and the allegation against him was an alleged RM30,000 bribe from a contractor. At the material time, there was also an allegation that 17 he cheated several disabled personal of Employee Provident Fund (EPF) deposits, though this allegation was denied by the Plaintiff. Although there was no evidence adduced regarding any charge or arrest or detention on ground of allegation of EPF matter, there was such allegation being circulated in several newspapers and/or news portals at that time and even PW2 Insp Wan Mohd Nor Halim also heard about it. In the circumstances, the pleaded words in paragraph 5 of the Statement of Claim were not defamatory. The 2nd Impugned Article

On 17.6.2016, the 1st Defendant published in its newspaper known as “the Sun on Friday” an article entitled “MACC nabs ex-MP” (“the 2nd Impugned Article”).

In paragraph 6 of the Statement of Claim, the Plaintiff pleaded the following impugned sentences in the 2nd Impugned Article to be defamatory to the Plaintiff –

“MACC nabs ex-MP” [“Statement 1”];

“PKR man being probed over RM30,000.00 bribe, allegedly cheating disabled persons of EPF money” [“Statement 2”];

“An MACC source said PKR Kuala Selangor division chief S.Manickavasagam (pic), the former Kapar MP, was allegedly caught red-handed with the money from a Grade 3 contractor…” [“Statement 3”]; and 18

“He is also being investigated for cheating the and disabled persons of their Employees Provident Fund (EPF deposits) amounting to more than Rm60,000.00 since becoming Kapar MP in 2008.” [“Statement 4”] For ease of reference, the abovementioned Statement 1 to Statement 4 are hereinafter referred to collectively as “the Impugned Words”.

In considering the issues at hand, this Court inter alia has to identify the “sting” of the 2nd Impugned Article when read as a whole. Is the 2nd Impugned Article about the arrest of the Plaintiff by the MACC? or is it about the alleged bribery and/or alleged cheating that MACC is investigating?

In the present case, the 1st Defendant’s contentions are :

read as a whole, the 2nd Impugned Article and the Impugned

Words do not bear the meanings pleaded in paragraphs 9, 1 to 11.6 and 12, 12.1 to 12.8 of the Statement of Claim.

even if the 2nd Impugned Article and the Impugned Words carry any of the pleaded meanings, those meanings are not defamatory of the Plaintiff;

further or alternatively, the 2nd Impugned Article and the Impugned Words were justified; 19

further, the 1st Defendant was protected by qualified privilege and no malice has been proved. Legal Principles

In this regard, it is trite law that the Plaintiff is restricted to the meanings pleaded in paragraphs 9, 11.1 to 11.6 and 12, 12.1 to12.8 of the SOC: “The Plaintiffs having only pleaded the natural and ordinary meanings, the Plaintiffs are confined to the meanings in paragraph 27(a) until (y) of the amended Statement of Claim. They cannot now allege a new defamatory meaning.” per Kamaludin Md Said J (now JCA) in Dato’ Abd Halim bin Ali & Anor v Sun Media Corporation & Anor [2015] 4 CLJ 928 at paragraph 53.

In this regard, as the Plaintiff has not pleaded a true innuendo, the court cannot have regard to any special meaning that the words may have had to any special group of people. In interpreting the 2nd Impugned Article, no evidence is admissible, since no true innuendo is pleaded: “It is well settled, as Mr Craig accepts, that, save in the case of a legal innuendo dependent on extrinsic facts known to certain readers, no evidence is admissible as to the sense in which readers understood an allegedly defamatory publication.” per Lord Bridge in Charleston v News Group Newspapers Ltd [1995] 2 A.C. 65.

The question is whether the ordinary man, on reading the 2nd Impugned Article, would understand it to carry the meanings as pleaded by the Plaintiff. 20

At the outset, the following principles have to be borne in mind in interpreting the 2nd Impugned Article –

The meaning of the 2nd Impugned Article is not a question of evidence. It is in essence a question of law that turns upon the construction of the words published…” Chok Foo Choo v The China Press Sdn Bhd [1999] 1 CLJ 461, CA at page 466 para (f). “The natural and ordinary meaning must be considered objectively without reference to evidence or what the plaintiff understood them to mean.” Lim Kit Siang v Datuk Dr Ling Liong Sik [1997] 5 MLJ 523 at page 528A.

In deciding whether something is defamatory: “… the test which is to be applied lies in this the question: do the words published in their natural and ordinary meaning impute to the plaintiff any dishonourable or discreditable conduct or motives or a lack of integrity on his part?” Chok Foo Choo v The China Press Sdn Bhd [1999] 1 CLJ 461, CA at page 467: “The typical type of defamation is an attack upon the moral character of the plaintiff attributing crime, dishonesty, untruthfulness, ingratitude or cruelty.” – Syed Husin Ali v Sharikat Penchetakan Utusan Melayu [1973] 2 MLJ 56 at 58 E. 21

The Impugned Article must be read as a whole to see whether the Impugned Words carry the defamatory meanings alleged by the Plaintiff. It is not permissible to take a phrase or sentence out of context to frame a defamatory meaning – see Gatley on Libel and Slander (10th ed) para 3.29; Lim Kit Siang v Datuk Ling Liong Sik [1997] 5 MLJ 523, at page 528A. Analysis of and Findings regarding 2nd Impugned Article and the Impugned Words.

For ease of reference, we reproduce the Impugned Words in the 2nd Impugned Article as pleaded by the Plaintiff in paragraph 6 of the SOC –

“MACC nabs ex-MP” [“Statement 1”];

“PKR man being probed over Rm30,000.00 bribe, allegedly cheating disabled persons of EPF money” [“Statement 2”];

“An MACC source said PKR Kuala Selangor division chief S.Manickavasagam (pic), the former Kapar MP, was allegedly caught red-handed with the money from a Grade 3 contractor…” [“Statement 3”]; and

“He is also being investigated for cheating the and disabled persons of their Employees Provident Fund (EPF deposits) amounting to more than Rm60,000.00 since becoming Kapar MP in 2008.” [“Statement 4”] 22

“MACC nabs ex-MP” [“Statement 1”]

Statement 1 is true.

The Plaintiff is ex Member of Parliament at the time the 2nd Impugned Article was published. The Plaintiff was elected as the Member of Parliament for the constitutency of Kapar in the 12th Malaysian general election in 2008.

The Plaintiff has also admitted that he was arrested by the MACC on 15.6.2016 and released on 16.6.2016.

“An MACC source said PKR Kuala Selangor division chief S.Manickavasagam (pic), the former Kapar MP, was allegedly caught red-handed with the money from a Grade 3 contractor…” [“Statement 3”]

Statement 3 is true.

The Plaintiff in cross-examination confirmed that at the time the 2nd Impugned Article was published on 17.6.2016, he was the Kuala Selangor Division Chief of PKR.

The Plaintiff in cross-examination also confirmed he was investigated by the MACC for receiving a RM 30,000 bribe in cash from a contractor. This is clear from the following extraxt of the notes of evidence: 23 HR Saya ingin merujuk En Manikavasagam kepada Soalan 11 dalam penyata saksi En Manikavasagam, WSPW1. Di muka surat 3. Soalan 11. Page 3. Soalan yang ditulis di sana, ‘Apakah siasatan terhadap Tuan? Saya telah disiasat telah menerima rasuah berjumlah RM30,000 dalam wang tunai daripada seorang kontraktor’. Soalan saya sekarang kepada En Manikavasagam, adakah benar En Manikavasagam disiasat oleh MACC kerana didakwa menerima rasuah berjumlah RM30,000 dalam wang tunai daripada seorang kontraktor? MANIKA Saya disiasat sahaja. Investigation only, Yang Arif.”

PW-2 in his examination-in-chief also confirmed that he had investigated the Plaintiff for receiving RM 30,000 bribe in cash from a contractor.

The Plaintiff also agreed in cross-examination that what was reported was that he was allegedly caught red-handed: HR Jadi, En Manikavasagam, adakah En Manikavasagam bersetuju bahawa apa yang dinyatakan di dalam artikel ini ialah bahawa En Manikavasagam disyaki atau kononnya didakwa, caught red-handed with the money from a grade 3 contractor. It is just an allegation, allegedly. Adakah En Manikavasagam bersetuju? MANIKA Saya bersetuju. 24

“PKR man being probed over RM30,000.00 bribe, allegedly cheating disabled persons of EPF money” [“Statement 2”] “He is also being investigated for cheating the and disabled persons of their Employees Provident Fund (EPF deposits) amounting to more than Rm60,000.00 since becoming Kapar MP in 2008.” [“Statement 4”]

Statement 4 as pleaded by the Plaintiff is inaccurate.

The Plaintiff, after being asked by the 1st Defendant’s counsel to compare the paragraph 6 of the Statement of Claim and Exhibit D-1, agreed during cross-examination that Statement 4 as pleaded in paragraph 6 of the SOC had, among others, left out the word “allegedly” but included the word “the and” – Statement 4 as pleaded by the Plaintiff Actual words published in the 2nd Impugned Article He is also being investigated for cheating the and disabled persons of their Employees Provident Fund (EPF deposits) amounting to more than Rm60,000.00 since becoming Kapar MP in 2008 He is also being investigated for allegedly cheating disabled persons of their Employees Provident Fund (EPF) deposits amounting to more than RM60,000 since he became

“PKR man being probed over Rm30,000.00 bribe” as contained in Statement 2 is true. The Plaintiff confirmed at the trial that he was at the material time being investigated by 25 MACC over RM30,000 alleged bribe which was said to be paid by a contractor (i.e. being probed over RM30,000 bribe).

In Statement 2 and Statement 4, it was reported that the Plaintiff had allegedly cheated disabled persons of the EPF money.

PW2 in examination-in-chief testified that he did not investigate the Plaintiff for cheating disable people of their EPF contributions – GSH Ya. Soalan seterusnya, Tuan, adakah Tuan pernah menyiasat atau menyoal-siasat Plaintif, Manikavasagam di dalam satu siasatan kes menipu wang caruman KWSP beberapa orang kurang upaya? HALIM Tidak pernah.

Among others -

PW2’s testimony showed that he was aware that there was another investigation by the MACC on the Plaintiff but he could not recall what happened to that investigation and that he had heard that MACC also investigated the Plaintiff for cheating disabled persons of their EPF contributions.

DW1 in his examination-in chief in Q&A 10 of WSDW-1 that he had contacted his source in MACC who confirmed to him that the Plaintiff was arrested by MACC for allegedly receiving 26 a RM 30,000 bribe, for allegedly being caught red-handed for receiving the bribe from a Grade 3 Contractor and for allegedly cheating disabled persons of their EPF money.

When pressed during cross-examination as to who was his source in MACC, DW 1 testified that he could not recall the name of the source in MACC who he spoke to at the time he wrote the 2nd Impugned Article on 17.6.2016 but he did write down what he heard from the source in MACC for purposes of writing the 2nd Impugned Article.

It must be remembered that the Plaintiff commenced this action some 1 year and 9 months after the 2nd Impugned Article was published on 17.6.2016. DW 1 was giving evidence on the conversation he had with a source in MACC some 4 years later (the trial took place on 28.9.2020).

The allegation against the Plaintiff in connection with the E.P.F. of several disabled persons was also reported in other newspapers or online media : -

By the Star Online on 16.6.2016 in an article entitled “Tian Chua confirms ex-Kapar MP probed for corruption” where the following words were published “He was also being probed for cheating the Employees Provident Fund (EPF) and several disabled people” – page 6, Bundle AB 1 at the 7th paragraph; 27

(ii) By Malaysiakini on 16.6.2016 in an article entitled “PKR leadership to meet ex-MP Manickavasagam over MACC arrest” where the following words were published “Sources revealed that he was being investigated for allegedly receiving a RM 30,000 bribe from a contractor and for cheating several disabled person of the Employees Provident Fund (EPF) deposits” – page 9, Bundle AB 1 at the 3rd paragraph;

(iii) By the New Straits Time on 17.6.2016 in an article entitled “I’m being set up, claims PKR man over corruption probe” where the following words were published “Yesterday, there were reports circulating on social media and portals, saying that I took a bribe amounting to RM 30,000 in cash, had deceived disabled people over their Employees Provident Fund deposit totalling more than RM 60,000, and that I was being investigated on eight other cases”. – page 22, Bundle AB 1 at the 3rd paragraph; and

(iv) By The Straits Times of Singapore on 18.6.2016 in an article entitled “Former Malaysian lawmaker denies taking $9,900 bribe, says parcel was thrown into his car” where the following words were published “A former Malaysian lawmaker has denied allegations of taking a RM 30,000 (S$9,900) bribe from a contractor, and deceiving disabled individuals into withdrawing their Employees Provided Fund (EPF) savings amounting to RM 60,000.” – page 36, Bundle AB 1 at the 1st paragraph. 28

In the entirety of the evidence adduced including the oral evidence and demeanour of witnesses, this Court finds that on a balance of probabilities there was at the material times also another investigation against the Plaintiff, i.e. regarding allegation of cheating EPF of several disabled persons.

In the premises, this Court finds that the words in Statement 2 and Statement 4, which were published on 17.6.2016, are not defamatory of the Plaintiff.

The 2nd Impugned Article did not in any way insinuate or impute any guilt upon the Plaintiff – it was merely reported that the Plaintiff was investigated and arrested by the MACC and this did in fact take place.

In Dato’ Annas bin Khatib Jaafar v Datuk Manja Ismail & Ors [2011] 8 MLJ 747, page 751, paragraphs 3 and 4 and page 752, paragraph 7, Prasad Sandosham J (later FCJ) held that alleging that a person is being investigated, or calling for an investigation into someone, is not an allegation that the person is guilty of a crime, and is therefore not defamatory.

Sivabalan a/l P Asapathy v The New Straits Times Press (M) Bhd [2010] 7 CLJ 885 at page 896 was a case which concerned a news report making an allegation of rape, among others, against the plaintiff who was in fact detained by the police for investigations. Zawawi Salleh J (now FCJ) held that the words complained of were not defamatory of the plaintiff since the news report merely contained allegations against the plaintiff rather than factual 29 statements imputing guilt on the plaintiff, and thus the plaintiff’s claim must fail. The learned Judge held as follows: “[18] To my mind, on plain reading of exhibit P1, it becomes clear that the news report merely makes an allegation of rape, among others, against the plaintiff as opposed to saying that the plaintiff is guilty of rape and several other allegations. This is clear from the heading of the news report by the use of the word ‘alleges’, including the use of the words in the body of the news report such as ‘allegedly’ (first paragraph), ‘apparently’ (second paragraph), ‘suspicion’ (third paragraph) and ‘allegedly’ (fourth paragraph). Thus, the ‘sting’ of the offending news report is that the plaintiff is merely suspected of alleged to have committed the several acts referred to and that the police have detained him merely for investigations.” (emphasis added)

The Plaintiff in paragraphs 11.1 to 11.6 of the Statement of Claim pleaded that the Impugned Words in is natural and ordinary meaning meant the following –

Bahawa Plaintif sebagai Pengawai Kerajaan Negeri dan bekas Ahli Parlimen bagi Kawasan Pilihanraya Parlimen Kapar Selangor Darul Ehsan adalah korup dan telah mengambil rasuah dari Kontraktor-Kontraktor untuk Kontrak-Kontrak dan telah menipu beberapa orang kurang upaya denagn deposit-deposit KWSP mereka denagn jumlah lebih daripada RM60,000.00; 30

Bahawa Plaintif adalah Pengawai Kerajaan Negeri dan bekas Ahli Parlimen yang tidak bertanggungjawab dengan berbuat demikian;

Bahawa Plaintif tidak layak untuk meemgang pejabat awam tersebut;

Bahawa Plaintif tidak bertanggungjawab dan korup;

Bahawa Plaintif telah melakukan kesalahan-kesalahan jenayah yang boleh dihukum penjara dengan bersekongkol dan menyokong activity-aktiviti jenayah; and

Bahawa Plaintif adalah tidak beretika.

This Court agrees with the 1st Defendant’s submission that paragraphs 11.1 to 11.6 of the Statement of Claim is not the natural and ordinary meaning of Impugned Words in the 2nd Impugned Article as the Plaintiff was not accused of –

being corrupted, has taken bribes and cheated disabled persons of EPF monies;

being an irresponsible state government officer and former

being disqualified to hold office;

irresponsible and corrupted; 31

has committed criminal offences which cab be sentenced to imprisonment by conspiring and supporting criminal activities; and

being unethical. In this regard, it is to be noted that where a suspect has been arrested by police or MACC or another enforcement agency for an alleged offence and where it is of public interest or is relevant for the mass media to report the incident, the news report of the incident would be stripped to the bare minimum of the act of arrest and detention without the factual context of the incident if the mass media is prohibited by the law of defamation from reporting the reason or ground alleged by the authority as the basis of such arrest or detention. Such excessive prohibition by the supposed law of defamation would unduly curtail the freedom of information and communication. Hence the courts have struck a fair and proper balance by holding that reporting of the allegations as allegations without accusation of guilt or dishonesty or immorality would not be defamatory.

The Plaintiff has also pleaded in paragraphs 12.1 to 12.8 of the Statement of Claim that the Impugned Words in the 2nd Impugned Article in its natural and ordinary meaning and/or by implication meant that –

Bahawa Plaintif adalah seorang yang tidak amanah dalam kedua-dua kapasiti peribadi dan kewangannya; 32

Bahawa Plaintif adalah seorang yang bersekongkol dengan jenayah dan merupakan suspek jenayah;

Bahawa Plaintif menyokong aktiviti-aktiviti jenayah;

Bahawa Plaintif adalah seorang yang tidak boleh dipercayai dan juga tidak layak untuk menjadi ahli politik;

Bahawa Plaintif tidak layak untuk memegang pejabat awam;

Bahawa Plaintif adalah seorang yang tidak bertanggungjawab dan korup;

Bahawa Plaintif telah melakukan kesalahan-kesalahan jenayah yang boleh dihukum penjara; dan

Bahawa Plaintif adalah seorang yang tidak beretika.

On the same reasons as stated in paragraph 47 above and following the decided authorities cited in paragraphs 44 and 45 above, this Court accepts the 1st Defendant’s submission that paragraphs 12.1 to 12.8 of the Statement of Claim do not state the natural and ordinary meaning of Impugned Words in the 2nd Impugned Article as the Plaintiff was not accused of –

Being untrustworthy in his personal and financial capacity; 33

Being a person associated with crime and is a criminal suspect;

Supporting criminal activities;

Being someone who cannot be trusted and is not fit to be a politician;

Being unfit to hold public office;

Being irresponsible and corrupt;

being guilty of criminal offences that is punishable with a jail sentence; and

being unethical. The observations made at the bottom of paragraph 47 above are also applicable here.

In the case of Dato' Seri Anwar Bin Ibrahim v The New Straits Times Press (M) Sdn Bhd & Anor [2010] 2 MLJ 492, page 503, the Court held: “[20] The defamatory nature of an imputation also cannot be judged in isolation. It has to be ascertained by reference to the moral or social standards of society generally. This is an important part of the consideration of what constitutes defamatory matter. Such societal standards are not amenable to evidentiary proof. It will be up to the judges to consider the requisite standards when determining 34 whether a matter is either capable of being defamatory or is in fact defamatory. The case law suggests that the standard that is usually adopted is that of ordinary reasonable people (see Jones v Skelton [1963] SR (NSW) 644) who are of fair average intelligence (see Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at p 7) but who are not avid for scandal (see Lewis v Daily Telegraph Ltd [1964] AC 234 at p 260). This person may engage in some degree of loose thinking (see Morgan v Odhams Press Ltd [1971] 2 All ER 1156 at p 1162) or reading between the lines (see Farquhar v Bottom [1980] 2 NSWLR 374 at p 380) but he or she should not be unduly suspicious (see Keogh v Incorporated Dental Hospital of Ireland (1910) 2 Ir R 577). As such, an ordinary reasonable person would presume that a man is innocent until proven guilty although the reality might sometimes be otherwise. This is necessary to protect the media who go no further than merely to report that a person is being investigated by police or has been arrested and charged with a criminal offence.” (emphasis added) As an ordinary reason person would presume that a man is innocent until proven guilty although the reality might sometimes be otherwise, such an ordinary reasonable person when reading the Impugned Words in the context and as a whole would know that the Plaintiff was arrested for allegations of two suspected offence which had yet to be proved against him, but such ordinary reasonable person would not interpret an arrest by MACC as proof of guilt or dishonesty or immorality.

In the premises, this Court has held that the Impugned Words in the 2nd Impugned Article when read as a whole are not defamatory of 35 the Plaintiff. The sting of the 2nd Impugned Article was that Plaintiff was arrested by the MACC and they were allegations against him. The sting is a true fact.

It is settled law that in defamation cases, the Defendants only need to prove the main sting of the libel or gist of the libel as pleaded by the Plaintiff, rather than the exact words used. If the sting of the libel is justified, then immaterial allegations cannot be grounds for finding against the Defendants – section 8 Defamation Act 1957; Abdul Rahman Talib v Seenivasagam [1965] 31 MLJ 142, page 158.

The decision of Hepworth J was affirmed by the Federal Court in Abdul Rahman Talib v. Seenivasagam & Anor [1966] 2 MLJ 66.

Thus, if this Court is satisfied, on a balance of probabilities that the Plaintiff was arrested by the MACC for alleged bribery, the Impugned Words will have been justified.

An example of this is provided in Abdul Rahman Talib v Seenivasagam & Anor [1965] 31 MLJ 142, page 158, where the Court distinguished between the common law where “there must be substantial justification of the whole libel” and Section 8 of Defamation Act 1957 which provides that it is not necessary to prove every charge “if the words not proved to be true do not materially injure the Plaintiff’s reputation having regard to the truth of the remaining charges”. The Court went on to find: 36 “There were two distinct charges against the Plaintiff, one being the receipt of the two sums of money and the other being the receipt of favours. As I have already found, he did receive favours but I am unable to find that he did receive sums of money. In my opinion although the Defendants have failed to prove the truth of the charge that the Plaintiff received the two sums of the words making that allegation does not materially injure the Plaintiff’s reputation having regard to the truth of the remaining charges. In my opinion, therefore, the Defendant’s defence of justification succeeds.” per Hepworth

In the entire circumstances of the present case including the similar publications by other news media on the allegation of cheating EPF of several disabled persons and the existence an investigation into the said allegation the 1st Defendant was justified in publishing the 2nd Impugned Article and the Impugned Words.

Qualified privilege is an available defence to a newspaper which acts responsibly and fairly in reporting issues of public importance Jameel v Wall Street Journal [2006] 4 All ER 1279.

It is now established that there is a special sub-category of qualified privilege known as “responsible journalism”. This defence raises 3 key issues: 37

Whether the 2nd Impugned Article deals with a matter of public importance;

Whether the Plaintiff was given an opportunity to state his side of the story; and

Whether the Plaintiff has shown malice by DW1 at the time he wrote the 2nd Impugned Article.

In most defences of responsible journalism, one of the central issues for consideration is malice. In the present case, not only was malice not pleaded, but more importantly it was never suggested to DW1 that he was actuated by malice at the time he wrote the 2nd Impugned Article. Indeed, even the Plaintiff himself never alleged in his evidence that DW1 was actuated by malice. On this ground alone, it is sufficient for this Court to hold that the Plaintiff cannot rely upon malice to defeat the protection of qualified privilege.

More importantly it was never suggested to DW-1 at trial that he was actuated by malice at the time he wrote the 2nd Impugned Article.

Added to that, the Plaintiff himself has withdrawn his claims against the 2nd Defendant who came to the Court to testify as DW1.

In the present case, it cannot be disputed that 2nd Impugned Article dealt with a matter of public interest because (a) the Plaintiff, as a seasoned politician, stood for elections at various times since 2008, 38 and (b) the Plaintiff himself agreed that any matter carried out by MACC, especially concerning a politician, is of public importance.

After the 1st Defendant’s publication of the 2nd Impugned Article, the Plaintiff did not complaint timeously to the 1st Defendant to question the accuracy of the article, nor to request the 1st Defendant to corresponding by publish the Plaintiff’s explanation, clarification and / or rebuttal. The Plaintiff’s notice of demand was sent to the 1st Defendant many months after the date of publication. In the course of the proceedings in the present case, the 1st Defendant has reiterated its willingness to public the Plaintiff’s explanation, clarification and / or rebuttal to the allegations if the Plaintiff were to request it. However, the Plaintiff has never made such a request for publishing his clarification, explanation and / or rebuttal until the date of trial. In the circumstances, this Court has found that the Plaintiff was given an opportunity to state his side of the story in our present case.

The only way to defeat the defence of qualified privilege on a matter of public importance is for the Plaintiff to plead and prove express malice: “When words are published which are both false and defamatory, the law presumes malice on the part of the person who publishes them. However, when the publication takes place under circumstances which create qualified privilege the presumption of malice is rebutted by the privilege and the plaintiff has to prove 39 express or actual malice on the part of the person responsible for the publication to defeat the privilege.... The onus lies on the plaintiff to prove malice and not the defendant to prove his bona fides or absence of malice.” per KN Segara J (later JCA) in Hoe Thean Sun v Lim Tee Keng [1999] 1 CLJ 187 at page 191.

What is meant by malice? Put succinctly, “....the common law has always regarded malice as the publishing of defamatory material with an improper motive.” - Rackham v Sandy (unreported), citing the decision of the High Court of Australia in Roberts v Bass.

In Horrocks v Lowe [1974] 1 All E.R. 662 @ 669 (c-e) Lord Diplock described malice in the following terms: “So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. 'Express malice' is the term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove. But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests.” (emphasis added)

In short, in order to establish express malice sufficient to defeat a defence of qualified privilege, the Plaintiff must establish that the DW-1 was actuated by a dominant desire to injure the Plaintiff. 40 It is not enough to establish that the reporter was careless or acted unreasonably, unless it is also established that he was deliberately careless or unreasonable because he was actuated by a dominant desire to injure the Plaintiff.

Rackham v Sandy : “[18] Miss Page advances an interesting argument based on the decision of the High Court of Australia in Roberts v Bass [2002] HCA 57. In that case Gleeson CJ, with whose judgment the majority agreed, said at paragraphs 77-78: “If the defendant knew that the statement was untrue when he or she made it, it is almost invariably conclusive evidence of malice. That is because a defendant who knowingly publishes false and defamatory material almost certainly has some improper motive for doing so, despite the inability of the plaintiff to identify the motive. In Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 51, Hunt J said that “[i]n some of the older authorities, an absence of honest belief on the part of the defendant is treated merely as some evidence of an indirect motive which alone is said to constitute express malice, but the better view, in my opinion, is to treat the two as different kinds of malice”. His Honour cited no authority for this novel proposition. Some years later, in Hanhrahan v Ainsworth (1990) 22 NSWLR 73 at 102-103, Clarke JA said that, since Horrocks “it has been accepted that if it is proved that a person has made a defamatory statement without an honest belief in its truth or for a dominant improper purpose… malice will be made out.” 41 The knowledge and experience of Justice Hunt in defamation matters is well recognised. But with great respect to his Honour and Clarke JA, they erred in asserting that lack of honest belief defeated a defence of qualified privilege. There is no basis in principle or authority for treating knowledge of falsity or lack of honest belief as a separate head of, or equivalent to, malice. In the law of qualified privilege, the common law has always regarded malice as the publishing of defamatory material with an improper motive. Knowledge of falsity is “almost conclusive evidence” that the defendant has some improper motive in publishing the material and that it actuated the publication. That judges have treated knowledge of falsity as almost conclusive evidence of malice is no ground, however, for treating it as a separate head of, or equivalent to, malice. In some circumstances, lack of honest belief in what has been published may also give rise to the inference that the matter was published for a motive or purpose that is foreign to the occasion of qualified privilege. Nothing in Lord Diplock's speech in Horrocks supports treating the defendant's knowledge or lack of belief as a separate head of, or equivalent to, malice. Indeed, Lord Diplock expressly said that, if it is proved that the defendant did not believe that what he or she published was true, it was “generally conclusive evidence” of improper motive.” Miss Page submits that malice arises if and only if it can be shown that the defendant was actuated by some improper motive. Knowledge of falsity is not a separate head of malice, still less is recklessness, it is simply a way of establishing an improper motive. 42 [19] I am of course bound by the decision in Horrocks v Lowe. But I respectfully agree with Gleeson CJ that there is nothing in Lord Diplock's speech in that case which supports treating the defendant's knowledge of falsity or lack of belief in truth as being probative, of itself and without more, of malice. It may be said that the point is of limited practical significance since knowledge of falsity will almost always establish the existence of an improper motive. [20] It is common ground and I accept that, when it comes to motive, what must be established against the individual defendant is that improper purpose was his dominant motive for publishing, as is apparent from the passage already cited from Horrocks v Lowe. [21] I also accept that Miss Page is right to emphasise that a defendant who honestly believes in the truth of what was published is not to be found guilty of malice merely because his belief was unreasonable or was arrived at after inadequate research or investigation. Lack of care in arriving at a belief is not to be equated with malice: see Telnikoff v Matusevitch; Gatley at para 16.17.” per Gray J. (emphasis added)

Horrocks v Lowe [1974] 1 All E.R. 662 : “Can a man who believes what he says on a privileged occasion to be true and which if true would not be an abuse of the occasion, be held to have made his statements 'recklessly whether they are true or false'? Gross and unreasoning prejudice may have led him to 43 have uttered them recklessly whether they were true or false, but if he believes the truth of what he said, can he at the same time be said to be reckless of the truth or falsity of his statements? Maybe that others with more judgment and more wisdom would not have formed the same belief, but if, in fact, he believes what he says, he cannot at the same time, in my opinion, be reckless whether it is true or false. Such recklessness falls short of deliberate falsehood. But such recklessness, not minding or caring whether it be true or false, whether it arise from anger or unreasoning prejudice, or from some other cause, is not consistent with belief in the truth of the statement. In Watt v Longsdon Greer LJ said: 'A man may believe in the truth of a defamatory statement, and yet when he publishes it be reckless whether his belief be well founded or not. His motive for publishing a libel on a privileged occasion may be an improper one, even though he believes the statement to be true.' If the statements were believed to be true, that negatives malice based on the contentions that the defendant did not believe them to be true and made them recklessly not caring whether they were true or false. But malice may be established in other ways than showing that the defendant did not believe in the truth of what he said (Smith v Thomas per Tindal CJ ((1835) 2 Bing NC 372 at 382)). 44 While it is true that a man may believe in the truth of what he says and yet be reckless whether his belief is well founded or not, recklessness whether the belief is well founded, while relevant to the question whether the defendant believed what he said, is not, if the defendant in fact believed, evidence of malice. If it were, then the man who honestly and out of a sense of duty made observations based on information found to be inaccurate or incorrect would have his freedom of speech on a privileged occasion unduly restricted.” per Viscount Dilhorne (emphasis added).

68.

a plea of express malice has to be specifically pleaded by way of a reply with particulars of facts and matters from which malice is to be inferred;

generalised or formulaic statements will not be permitted. The plea of malice should expressly state what the defendant did or said or knew; and

a failure to properly plead and particularise express malice means that the Plaintiff cannot make such an allegation at the trial. 45 The abovementioned principles are also decided by the following case authorities:

(a). Dato Wan Hashim Wan Daud v Mazlan Ibrahim [1997] 5 CLJ 140, at page 147, para b – d – “From the authorities there is a distinction being drawn between express malice and malice in law. The latter kind of malice may be presumed from the fact of the publication of defamatory words, so that the plaintiff need not prove it. (See Belt v. Lawes [1882] 51 LJQB 359, DC). Whereas express malice which is actual malice or malice in fact has to be pleaded and proven by the plaintiff. I agree with the submission of the learned counsel for the plaintiff that O. 78 r. 3(3) RHC refers to this latter kind of malice and not to malice in law. Therefore, if the plaintiff merely seeks to rely on malice in law there is no requirement for the plaintiff to serve a reply to the defendant's defence. The failure of the plaintiff to serve a reply to the defence would of course deny the plaintiff from adducing evidence of actual malice which is necessary in order to rebut the defence of qualified privilege or fair comment raised by the 2nd defendant.” per Arifin Zakaria J. (later CJ) [emphasis added]

Kamaludin Md Said J (now JCA) in Dato’ Abd Halim bin Alin & Anor v Sun Media Corporation Sdn Bhd & Anor [2015] 4 CLJ 928 held: 46 “In short, in order to establish express malice sufficient to defeat a defence of fair comment or qualified privilege, the Plaintiffs must establish that the Defendants were actuated by a dominant desire to injure the Plaintiffs. It is not enough to establish that the reporter was careless or acted unreasonably, unless it is also established that he was deliberately careless or unreasonable because he was actuated by a dominant desire to injure the Plaintiffs. Knowledge of, or recklessness as to, the falsity of the report is not in a separate head of malice. It is only part of the evidence, which the court must consider together with other evidence, when deciding whether the reporter was actuated by an improper motive” (emphasis added)

The Court of Appeal in Credit Guarantee Corporation Malaysia Bhd v SSN Medical Products Sdn Bhd [2017] 6 CLJ 129, pages 148-149 held: “[64] Be that as it may, still on the question of malice, there is another serious infirmity which appears to have been overlooked by the learned JC. Under O. 78 r. 3(3) of the Rules of Court 2012 ("ROC 2012"), the plaintiff must serve a reply giving particulars of the facts and matters from which malice is to be inferred. For convenience O. 78 r. 3 of the ROC 2012 is set out below: Obligations to give particulars (O. 78, r. 3) 47

Where in an action for libel or slander the plaintiff alleges that the defendant maliciously published the words or matters complained of, he need not in his statement of claim give particulars of the facts on which he relies in support of the allegation of malice, but if the defendant pleads that any of those words or matters are fair comment on a matter of public interest or were published upon a privileged occasion and the plaintiff intends to allege that the defendant was actuated by express malice, he must serve a reply giving particulars of the facts and matters from which the malice is to be inferred. [65] It is not disputed that the plaintiff had failed to file a reply which included a plea of malice as an answer to the defence of privilege as well as giving particulars of the facts from which malice is to be inferred. The reason for this requirement is obvious. It is to provide an opportunity to the defendant to verify the truth and accuracy of those particulars as well as to rebut the allegations if required (see Subramaniam a/l Paramasivam v. Courts Mammoth Bhd & Anor [2011] 10 CLJ 739; [2010] 9 MLJ 363). [66] Being a mandatory requirement under the ROC 2012 in respect of a specific matter, the recent Federal Court decision in Gurbachan Singh Bagawan Singh & Ors v. Vellasamy Pennusamy & Other Appeals [2015] 1 CLJ 719 ("Gurbachan Singh "), in our respectful view, cannot assist the plaintiff to overcome such defect in the pleading. Unlike the Gurbachan Singh case, any objection to such evidence being adduced in the instant case would have been 48 pointless as such evidence would have been relevant to the cause of action in negligence and in any case relevant and closely connected to the defence of qualified privilege. In the circumstances, even at the outset, the plaintiff cannot succeed in establishing malice as an answer to the defence of qualified privilege. (emphasis added)”

The relevant time for addressing malice/honesty is the state of the Defendant’s knowledge at the date the 2nd Impugned Article was published. In Hoe Thean Sun & Anor v Lim Tee Keng [1999] 1 CLJ 187, page 192 : “In the final analysis, for the purpose of determining malice at the time the report was made, it is irrelevant whether the defendant succeeded in his suit against the plaintiffs at the Penang High Court (civil suit no. 22-169-93). The fact he instituted the suit is clear evidence of bona fides on his part. The fact that the defendant has not withdrawn the police report to-date, even after he lost his case against the plaintiffs in the Penang High Court civil suit no. 22-169- 93, is totally irrelevant to the issue of malice at the time the statements were made in the police report. The plaintiffs have failed to discharge the onus to prove malice. There is neither intrinsic nor extraneous evidence of actual malice in this case. The defence of qualified privilege must succeed.” per KN Segara JC (as he then was).

From the evidence and the circumstances in our present case –

No Reply to the Defence was filed by the plaintiff; 49

The Plaintiff did not make allegations of specific facts about what the Defendants did or said or knew which the Plaintiff relied upon to prove malice;

In the Plaintiff PW1’s evidence at the trial, PW1 did not allege malice against either Defendant and did not purport to assert specific allegations of malice;

It was not put to the journalist DW1 in cross-examination that he was activated by malice at the time he wrote the 2nd Impugned Article;

It was not put to the journalist DW1 that at the time he wrote the 2nd Impugned Article he was fully aware that the Impugned Words were untrue or false or that he had distorted the facts; and

Neither was it established in evidence that the 1st Defendant published the 2nd Impugned Article knowing them to be untrue or false or knowing that DW1 had distorted the facts.

In the premises, the Plaintiff has not proved malice on a balance of probabilities. Moreover, the Plaintiff’s failure to properly plead specific particulars of malice would also deny him the right to rely upon any malice to defeat the 1st Defendant’s qualified privilege in the present case. 50

Moreover, this Court has carefully observed the demeanour of the journalist DW1 at the trial and when such demeanour is viewed in light of the evidence adduced in the present case, this Court has found on a balance of probabilities that there was no malice on the part of the journalist DW1 when he wrote the two impugned articles and that DW1 at the material times acted bona fide.

In the premises, this Court also found that the 1st Defendant has proved its defence of justification and its defence of qualified privilege on a balance of probabilities.

By reason of the foregoing paragraphs, this Court concluded and held on 18.12.2020 that –

the impugned words in the two impugned articles were not defamatory of the Plaintiff; and

furthermore, the 1st Defendant has proved its defence of justification and also its defence of qualified privilege.

Accordingly, this Court decided on 18.12.2020 that the Plaintiff’s claims were dismissed with costs.

After hearing both counsel on the quantum of costs, this Court assessed the costs of action at RM10,000.00 subject to allocatur. Dated : 10th February 2021. 51 Signed ............................................................ TEE GEOK HOCK JUDICIAL COMMISIONER HIGH COURT OF MALAYA AT SHAH ALAM (NCVC 10) To the parties’ solicitors:

For the Plaintiff :

For the Defendant : Messrs Himahlini & Co (previously Himahlini & Loh)